Manju Sharma v. Suji Sharma — 1996 DIGILAW 518 (RAJ)

Honble SHARMA, J. - Can election petition be dismissed at the threshold in exercise of power u/O.7 R. 11 of the CPC, if it does not furnish cause of action ? (2) This short question is the subject matter of the writ petition filed by the petitioner assailing the order dated 17.7.1995 passed by the AddI. Civil Judge No. 1, Jaipur Dist. Jaipur (for short `trial Judge) by which the preliminary objections raised by the petitioner under the provisions of O.7, R. 11 of the CPC (for short `Code) has been dismissed in the election petition instituted by non-petitioner No. 1 u/R 80 of the Panchayati Raj (Election) Rules,1994 (for short`election rules). (3) The brief facts which are relevant for the disposal of this writ petition are that the election for the office of Sarpanch of Village Panchayat, Anantpur in Jaipur Dist. was held in the month of January 1995 in terms of Rajasthan Panchayati Raj Act, 1994 (for short Act 1994). In the said election there were three candidates for the office of Sarpanch including the petitioner Manju Sharma, non-petitioner No. 1 Smt. Suji and one Smt. Naraini. The result of the said election was declared on 31.1.1995 and the petitioner was declared elected for the office of Sarpanch defea- ting non-petitioner No. 1 Smt. Suji by a margin of 36 votes. Non-petitioner Smt. Suji instituted a petition u/s R 80 of the Election Rules before the Dist. Judge, Jaipur which has been tried by the Addl. Civil Judge No. 1, Jaipur Dist, Jaipur. (4) The petitioner has annexed photo-stat copy of the election petition (Annexure 2) with the writ petition. A perusal of election petition goes to show that election of the petitioner has been challenged on the following grounds:- (a) In ground No. 1(ga) it has been alleged by non- petitioner Smt. Suji that polling party was under the influence of the petitioner Manju as Mr. Girdhari Lal Sharma, father-in- law of petitioner Manju, was a member of polling party and was instrumental in casting votes in fav- our of Smt. Manju. Other members of the polling party were also canvassing Smt. Manju near the polling booth. Arjun Lal, another father-in-law of petitioner Manju, when he was Chairman of Chomu Agriculture Mandi, got them employed. Girdhari Lal Sharma, father-in- law of petitioner Manju, was a member of polling party and was instrumental in casting votes in fav- our of Smt. Manju. Other members of the polling party were also canvassing Smt. Manju near the polling booth. Arjun Lal, another father-in-law of petitioner Manju, when he was Chairman of Chomu Agriculture Mandi, got them employed. The said polling party was initially posted in another polling booth but some how it managed to act on the polling booth related to petitioner Smt.Manju. The objections raised by non-petitioner Smt. Suji were ignored and with the help of the polling party petitioner Smt. Manju became Sarpanch, by margin of 36 votes. (b) In ground No. 2(ka) it has been stated that Smt. Manju got herself elected with the help of corrupt praitices of her father in-law Shri Girdhari and the polling party and her election deserves to be set aside. (c) In ground No. 2 (kha) it has been stated that ink used by the polling party was defective and people exercised their right of vote more than once (d) In ground No. 2(ga) it has been stated that in connivance of Girdhari Lal votes of many dead persons were polled. (e) In ground No. 2(gha) it has been pleaded that votes of such persons were polled who were not present in the village on that day. The objections raised by the representatives of Smt. Suji were ignored. Thus petitioner Manju was declared elected on account of acceptance of invalid votes. (f) In ground No. 3 it has been stated that Girdhari Lal was present at the time of counting of votes and irregularities were committed in counting of the votes. (g) In ground No. 3(ka) it has been mentioned that votes polled in favour of non-petitioner Smt. Suji were illegally rejected and in ground 3(kha) it has been stated that votes polled in favour of non-petitioner Smt. Suji were counted in favour of another candidate, if re-count of the votes was made, these irregularities could have been brought to the notice. (5) The petitioner filed two separate applications before the trial Judge, seeking rejection of election petition. In one application the petitioner alleged that affidavit was not filed in support of the alleged corrupt practices and also copy of the election petition served on the petition did not bear Signatures of the election petitioner. (5) The petitioner filed two separate applications before the trial Judge, seeking rejection of election petition. In one application the petitioner alleged that affidavit was not filed in support of the alleged corrupt practices and also copy of the election petition served on the petition did not bear Signatures of the election petitioner. In another application submitted u/O.7 R.11 CPC the petitioner has given out that the contents of the election petition were vague. No material particulars and details were given in the election petition and it did not disclose cause of action. (6) The trial Judge dismissed the application of the petitioner vide the order dated 17.7.1995 and proceeded to try the election petition. (7) The petitioner has invoked the extra ordinary jurisdiction of this Court u/ Art. 226 & 227 of the Constitution of India challenging the order mentioned herein above. (8) Mr. M.L. Sawney the learned counsel for the non-petitioner Smt. Suji submitted reply to the writ petition and also filed an application raising preliminary objections to the admission of the writ petition. It has been contended by Mr. Sawney that the petitioner should have gone either in appeal or revision against impugned order and writ petition is not maintainable. It has been further contended by the learned counsel that the writ petition has been filed on false flimsy, frivolous grounds. Filing of affidavit was not necessary under the Panchayati Raj Act, 1994 and the election rules.Principles of equity, good conscience and natural justice can not change the statutory procedure laid down by the Act 1994 and rules made there under.If High Court interferes in the Panchayati election procedure on false and frivolous grounds the entire economy of the sons of the soil will be shattered and the panchayati election will turn out to be a curse rather than a boom. (9) Mr. Alankar Khanna, the learned counsel for the petitioner has vehemently argued that the primary objections raised by the petitioner deserved to be sustained in view of the provisions of R. 82 of the election rules. The provisions of the Representation of People Act, 1951 and the principles embodied there in shall apply even to the petitions under the Rajasthan Panchayati Act on the basis of equity jus- tice and egged conscience. The provisions of the Representation of People Act, 1951 and the principles embodied there in shall apply even to the petitions under the Rajasthan Panchayati Act on the basis of equity jus- tice and egged conscience. The application preferred by the petitioner u/O.7 R. 11 of the Code has been dismissed in a perfunctory manner without properly appreciating the sudgements of this court and the Apex Court in which it has been held that in the absence of material particulars and material facts the election petition is liable to be dismissed. (10) I have given my anxious consideration to the arguments advanced by the learned counsel and perused the documents minutely. (11) In order to appreciate the arguments advanced by the learned counsel,a comparative study of the relevant provisions of the Representation of People Act, 1951 (for short R.P. Act) and `election rules is necessary. Section 83 R.P. Act contents of petition:– Rule 82 of the Election Rules Contents and varification of election petition:– (1) An election petition :–(a) shall contain a concise statement of the material facts on which the petitioner relies; (1) The petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signied by the petitioner and verified in the manner laid down in the Civil Procedure Code, 1908 (Central Act V of 1908), for the verification of pleadings. (b) shall be forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified by him in the same manner as the petition. (c) shall be signied by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings : provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the particulars thereof. 2. Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition (12) The framers of the Election Rules have verbatim borrowed Cls. 2. Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition (12) The framers of the Election Rules have verbatim borrowed Cls. (A) & (C) of sub-sec.(1) of Sec. 83 of the R.P. Act and framed sub-R.(1) of R. 82 of the election rules. Similarly sub- sec. (2) of Sec. 83 of the R.P. Act has been borrowed as sub-R. (2) of Rs. 82 of the Election Rules. (13) It is pertinent to note that Cl.(b) of sub-sec.(1) and proviso appended to Cl (C) of sub-sec(1) of Sec. 83 of the R.P. Act, which are related to full particulars of corrupt practice and affidavit in the prescribed form in support of allegation of such corrupt practice and allegation there of,have been left. So it can safely be observed that it is not necessary to set forth full particulars of any corrupt practice, including as full statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. It is also not necessary to file an affidavit in support of the allegation of such corrupt practice. (10)``Corrupt practicehas been defined in R. 79 of the election rules. The rule has been borrowed from Sec. 123 of the R.P. Act. For the purpose of writ petition before me, only sub-R(2) of R. 79 of the election rules is relevant which is pari materia with sub-sec. (2) of Sec.123 of the R.P.Act. (10)``Corrupt practicehas been defined in R. 79 of the election rules. The rule has been borrowed from Sec. 123 of the R.P. Act. For the purpose of writ petition before me, only sub-R(2) of R. 79 of the election rules is relevant which is pari materia with sub-sec. (2) of Sec.123 of the R.P.Act. R.P. ACT ELECTION RULES Sub-section (2) of Sec. 123 :– Undue influence, that is to say, any direct or indirect interference of attempt to interfere on the part of the candidate or his agent, or of any other person (with the consent of the candidate or his election agent), with the free exercise of any electoral right : sub-R. (2) of Rule 79 Rule 79 :–Undue influence that is to say, any direct or indirect interference on the part of the a candidate or of any other person with the free exercise of right to vote : Provided,the provisions of this clause any such person as is referred to therein ; Provided(a) without prejudice to the generality of the provision of this clause any such person as is referred to the generality of (i) threatens any candidate, or any other elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or of explusion from any caste or community; or (i) threatens any candidate, or any other elector or any person in whom a candidate or an elector is interested, with injury of any kind including so cial ostracism and ex-communication or explusion from any caste or comunity; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or electoral within the meaning of this clause; (ii) induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure; shall be deemde to interferen with the free expercise of the right of such candidate or elector to vote within the meaning of this clause; (b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be intererence within the meaning of this clause. (b) a declaration of public policy, or a promise of public action or the mere exercise of a legal right without intent to interfere with the right to vote shall not be deemed to be interference within the meaning of this clause. (14) Non petitioner Smt. Suji has in the election petition, though not pleaded the particular provision of the election but it seems that in para 1(ga) of the election petition Smt. Suji has made reference of corrupt practice of`undue influence of Girdhari Lal Sharma , father-in -law of petitioner Manju. In para 2(Ka) of the election petition, Smt. Suji has again pleaded the corrupt practice of Girdhari Lal as well as the members of the polling party in seeking votes in favour of Smt. Manju. In para 2(kha) again the allegations were levelled against members of the polling party in not using proper ink. In para 2(ga) allegation were again levelled against Girdhari Lal in entering into conspiracy of polling votes of dead persons. In para2 (gha) it has been alleged that votes of those persons were polled whowere not present in the village on that day. In para 3 allegations were again made against Girdhari Lal. In para3 (ka) it has been alleged that votes polled in favour of Smt. Suji were illegally rejected and in para 3(kha) if has been stated that votes polled in fovour of Smti suji were added in the account of another candidate. In para 3 allegations were again made against Girdhari Lal. In para3 (ka) it has been alleged that votes polled in favour of Smt. Suji were illegally rejected and in para 3(kha) if has been stated that votes polled in fovour of Smti suji were added in the account of another candidate. (15) Now in the light of the facts pleaded in the writ petition I proceed to exa- mine the provisions of rule 80 of the election rules which reads as under :– ``An election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared,on any one or more of the following grounds :– (a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election, or (b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate, or (c) that any nomination was improperly rejected, or (d) that the result of the election is so for as it concern the returned candidate was materially effected - (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate, or (iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void, or (iv) by any non-compliance with the provisions of the Act or of these rule, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (f) that, but for votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtain- ed a majority of the valid votes. Smt. Suji has failed to bring her case in any of the provisions of Rs. 80 of the election rules. I find following infirmities in the election petition instituted by Smt. Suji :– a) The election petition does not contain concise statement of mate- rial facts on which she relies. As such the provisions of sub-R.(1) of R. 82 of the election rules have been flouted. 80 of the election rules. I find following infirmities in the election petition instituted by Smt. Suji :– a) The election petition does not contain concise statement of mate- rial facts on which she relies. As such the provisions of sub-R.(1) of R. 82 of the election rules have been flouted. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action of his or her defence are `material facts. In the context of a charge of corrupt practice,`material fact would mean all the basic facts constitute the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before she can succeed in that charge. In short all those fact which are essential to clothe the petition with a complete cause of action are `material facts. These must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of R. 82(1) of the election rules. Smt. Suji in her election petition has not named the persons whowere mem- bers of the polling party. It has also not been pleaded by her that as to how and in what manner the persons of polling party were making publicity and seeking votes in favour of Smt. Manju. It has also not been pleaded as to whether the corrupt practice was committed by Girdhari Lal with the consent or connivance of Smt. Manju and how and why the polling party was under her influence. If corrupt prac- tice was committed by Girdhari Lal or Arjun Lal or any other person in the interest of Smt. Manju, how the result of the election in so far as it concerned the returned candidate Smt. Manju, was materially affected. Only vague allegations have been levelled in the election petition which are not sufficient to assail the election of the returned candidate Smt. Manju. (b) The election petition does not contain the names of persons who exercised their right to vote more than once and who impersonated the dead persons and the persons who were not present in the village.It has also not been averred as to whom the complaints were madeand what were the names of the representatines of the election petitioner, who made the complaints. It has also not been pleaded as to how the act of impersonation had helped Smt. Manju. It has also not been pleaded as to how the act of impersonation had helped Smt. Manju. (c) The material facts regarding numbers of illegally rejected votes and the votes polled in favour of Smt. Suji but counted in the account of another, have not been given. It has also not been pleaded as to how the result of the election of the returned candidate was materially affected. (d) The case of Smt. Suji neither comes under sub-R (2) of R 79 nor is covered by Cl.(b) of R. 80 of the Election Rules. (16) In Manu Bhai, Nand Lal Amarsay vs. Popat Lal Mani Lal (1), the Apex Court observed as under :– `Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the election petition. Applying this test in the instant case it may be said that no direct verdict can be given in favour of the election petitioner Smt. Suji on the basis of the facts pleaded in the election petition. (17) In Ajhar Husain vs. Rajiv Gandhi, (2), the Apex Court observed as under:- ` An election petition can be summarily dismissed if it does not furnish cause of action in exercise of powers under the provision of CPC. And it is settled law that the omission of a single material fact would lead to an incomplete cause of action and an election petition with- out the material facts releting to a corrupt practice is not an election petition at all. (18) Rule 85 of the Election Rules provides that procedure enumerated in the Code of Civil Procedure, 1908 in regard to suits shall, in so far as it can be made applicable be followed in the hearing of the petition. Order 7,R.11 of the CPC provides that plaint shall be rejecteed when it does not disclose a cause of action. (17). Mr. Alankar Khanna, learned counsel for the petitioner has placed reliance on Ram Nivas vs. Sardar Singh, (3) in which provisions of Sec. 83 of the R.P. Act was made applicable on the basis of the principles of equity, good conscience and justice. (17). Mr. Alankar Khanna, learned counsel for the petitioner has placed reliance on Ram Nivas vs. Sardar Singh, (3) in which provisions of Sec. 83 of the R.P. Act was made applicable on the basis of the principles of equity, good conscience and justice. It may be stated that in Rajasthan Panchayat Act, 1953 there were no provision identical to the provisions of Sec. 83 of the R.P. Act but in the election rules there are independent provisions pari materia to the provisions of R.P. Act. The provisions of election rules are independently applicable to the election petitions filed. (18). Mr. Sawney learned counsel for the non petitioner Smt. Suji has argued that the power to reject election petition under the provisions of CPC should not be exercised at the threshold. The Court must proceed with the trial, record evidence and only after the trial is concluded the powers under the CPC should be exercised. I am of the considered opinion that argument of the learned counsel is thoroughly mis-conceived and untenable. The powers u/o.7 R. 11 CPC have been conferred on the competent court so that the allegations come to an end at the earliest and the concern litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuit and discharge their duties. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging, the petitioner who is an election member would not feel sufficient free to devote her whole- hearted attention to matters of public importance which clamour for the attention in her capacity as an elected representative. The time and attention demanded by her election office will have to be diverted to matter pertaining to the context to the election petition. Instead of being engaged in a campaign to relieve the distress of the people of her panchayat who voted her in to office and instead of resolving their terms, she would be engaged in a compaign to establish that she is infact been duly elected. Instead of being engaged in a campaign to relieve the distress of the people of her panchayat who voted her in to office and instead of resolving their terms, she would be engaged in a compaign to establish that she is infact been duly elected. Instead of discharging her functions of elected representative of the area, she will be engaged in a struggle to establish that she is indeed such a representative, notwithstanding the fact that she has infact won the verdict and the confidence of the electorate at the polls. She will have to devote her time for litigation in the court before she can whole-heartedly engage herself in discharging the trust reposed in her by the electorate. (19) Dealing with the another argument of Mr. Sawney, the learned counsel that the writ petition is not maintainable as the impugned order was passed under the provisions of CPC and the petitioner ought to have filed appeal or revision against the impugned order . It may be stated that no appeal has been provided u/O.43 R. 1 of the CPC against the order rejecting an application filed u/O 7,R.11 CPC. So far the scope of civil revision u/s 115 CPC is concerned, the scope is limited to the jurisdictional error. In the Rajasthan Panchayati Raj Act, 1994 and also in the election rules no appeal has been provided. Therefore I hold that writ petition under Arts. 226 and 227 of the Constitution of India is maintainable against the impugned order. Upshot to the above discussion is that election petition filed by Smt.Suji does not disclose cause of action. The trial Judge has not properly appreciated the provisions of Rr.79,80,82 & 85 of the election rules and committed illegality in dismissing the application of petitioner Manju submitted u/O 7,R. 11of the CPC. (20) In the result I allow the petition and set aside the impugned order dated 17.7.1995 passed by the trial Judge, in election petition No. 14/95. While allowing the application of the petitioner submitted u/O 7 R. 11 CPC I hold that election petition does not disclose cause of action and the same is rejected. (21) No order as to costs.